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Authorities Pressure Lawyers, Prevent Courts from Handling Milk Cases

December 20, 2008

According to a September 22 Takungpao article and an October 16 New York Times (NYT) article, Chinese lawyers in Beijing and the provinces of Hebei and Henan reported that officials have pressured them not to take cases related to milk powder tainted with the toxic chemical melamine, the widespread sale of which was revealed to the public in September 2008. The major dairy producer Sanlu has been at the center of the scandal, which has led to the deaths of at least four infants and sickened at least 53,000 children, according to the NYT article.

According to a September 22 Takungpao article and an October 16 New York Times (NYT) article, Chinese lawyers in Beijing and the provinces of Hebei and Henan reported that officials have pressured them not to take cases related to milk powder tainted with the toxic chemical melamine, the widespread sale of which was revealed to the public in September 2008. The major dairy producer Sanlu has been at the center of the scandal, which has led to the deaths of at least four infants and sickened at least 53,000 children, according to the NYT article. While many lawyers have agreed to handle such cases, Chinese courts have been reluctant to accept them. On October 30, an International Herald Tribune article reported that courts had received submissions for at least twelve individual lawsuits, but had not accepted any of them. According to the Chinese financial news source JRJ.com on November 22, Chinese courts have yet to accept a single lawsuit related to tainted milk powder. Sichuan Online reported on October 31 that the Xinhua District Court in Shijiazhuang cited instructions from a higher court to not accept any Sanlu compensation cases for the time being. According to the article, the Xinhua District Court said it had to wait for the government's compensation plan.

Reported Incidents of Official Pressure On Lawyers

September 14 - According to an anonymous lawyer quoted in Takungpao's report, officials in Hebei province reportedly told a group of lawyers to stay away from milk cases, emphasizing the government's role in remedying the situation as well as the need to ensure stability. According to the lawyer, authorities mentioned that the consequences for taking Sanlu compensation cases would "not simply be a matter of job loss."

September 27 - According to the October 16 NYT article, Henan judicial bureau officials met with a group of lawyers and instructed them to report to the government if they decided to take a milk case, emphasizing requirements that lawyers tell the government about cases involving "many people or delicate issues." According to the NYT report, at least 24 lawyers, 20 from Henan alone, have removed their names from a nationwide volunteer list consisting of more than 100 lawyers willing to provide legal counseling to parents.

September - According to NYT, the Beijing Lawyers Association reportedly dissuaded lawyers from filing lawsuits in tainted milk cases, especially if the suits were on behalf of plaintiffs from more than one province. The association also instructed lawyers not to publish briefs online.

Despite official pressure, demand is high for legal assistance with milk powder compensation claims, and lawyers have demonstrated broad willingness to accommodate victims' needs. The October 16 NYT article, citing human rights lawyer Li Fangping, reported that volunteer lawyers already had fielded more than 1,200 calls from parents. Xinhua articles from September 14 and October 7 reported that lawyers from Beijing, Tianjin, Henan, Hubei, Hunan, Anhui, Shandong, Shaanxi, Jiangsu, and Ningxia carried out activities including distributing materials to answer basic legal questions and visiting local hospitals to give advice. A September 18 article on the Ministry of Justice Web site (link no longer available) reported that lawyers at a meeting of the Shenzhen City Lawyers Association called for providing free legal services to victims. According to the October 7 Xinhua article, some lawyers were considering class-action lawsuits due to the difficulties that individual families face in collecting necessary evidence. On November 13, the Washington Post reported that 15 lawyers representing nearly 100 families decided to go forward with plans for a class action lawsuit against dairy producer Sanlu. As of the November 22 JRJ.com report, the lawyers were waiting for the results of negotiations with Sanlu before filing their case with the Hebei High People's Court.

Some lawyers have attributed official pressure to the potential that large-scale legal action could uncover collusion between defendants and high-level government officials. The October 16 NYT article quoted Beijing lawyer Teng Biao as saying that the crisis "involves many officials from authorities in the city of Shijiazhuang up to the central government. It involves media censorship, the food quality regulatory system and the corrupt deal between commercial merchants and corrupt officials." Others have noted official concerns regarding a class-action lawsuit's potential for disrupting social stability. NYT quoted Professor Zhang Xinbao as saying, "They don’t want to see so many people getting involved in one lawsuit. This might threaten social stability." Official explanations have focused on the likelihood that uncertainties in China's judicial regulations and relevant product safety legislation would lead to failures in compensating the families in need. An October 20 Xinhua editorial notes that it would be "incredibly difficult to provide adequate compensation" under the 2007 draft Food Safety Law under deliberation, which places proportional limits on the damages a plaintiff can recover in a product liability suit. In addition, the editorial notes that current regulations prompt courts to split class action suits into many individual cases, making the judicial process "incompatible with class action lawsuits." One Supreme People's Court judge has argued that China's cultural environment does not allow judges to prescribe discretionary legal remedies. At a conference addressing the legal problems of the milk crisis, transcribed by China Civil and Commercial Law Net, Judge Chen Xianjie said, "In China's cultural traditions and public opinion atmosphere … it has never been permitted that judges make discretionary judgments because it appears to others that such are completely arbitrary."

For more information see Section III--Access to Justice, in the Congressional-Executive Commission on China's 2008 Annual Report, and Section III--Impact of Emergencies: Food Safety, Product Quality, and Climate Change, in the Congressional-Executive Commission on China's 2007 Annual Report.